1,000 words / The European Union (Withdrawal) Bill

This piece was posted shortly after the European Union (Withdrawal) Bill was published. The Bill was amended in a number of significant ways during its passage through Parliament. For an overview of the as-enacted version the legislation, see this 1,000 words post. A longer analysis of the European Union (Withdrawal) Act 2018 can be found in an article that I wrote with Professor Stephen Tierney, a pre-publication version of which can be accessed via this post.

The EU (Withdrawal) Bill (popularly known as the “Great Repeal Bill”) was introduced into Parliament on 13 July. It is the most important piece of Brexit-related legislation — and one of the most important bills Parliament has considered for several decades. The Bill will do three key things. First, it will repeal the European Communities Act, which was passed in 1972 order to enable the UK to join what is now the EU. Second, it will turn nearly all existing EU law into UK law. A snapshot of the EU laws that exist just before Brexit will be taken, and those EU laws will become national laws. Third, the Bill will give Government Ministers powers to amend, get rid of and replace “retained EU laws” (that is, EU laws that are converted into national laws by the Bill).

Whatever concerns might arise in relation to the Bill — and, as we will see, there are many — the Bill, or something like it, is undeniably necessary. The UK has relied heavily on the EU to make many of its laws over the last 40 or so years, and there simply is not time to replace all of them with newly drafted national laws between now and Brexit. A cut-and-paste approach is therefore essential. It is also imperative that Ministers should have the power to amend, repeal or replace the EU laws that are brought into the domestic legal system in this way. This necessary because many of those laws will simply not make sense post-Brexit. They might, for instance, say that certain crucial regulatory functions are to be carried out by EU agencies. But those agencies will (by default) have no role in relation to the UK post-Brexit, and such functions will therefore have to be assigned to UK bodies. Indeed, Ministers will need to create new UK public authorities to do things that the EU has previously done — and the Bill will give them the power to do precisely that.

What, then, are the concerns? In our constitutional system, a fundamental principle is that Parliament makes the law and the Government administers the country in line with the laws Parliament has made. Admittedly, this principle is far from slavishly adhered to. Indeed, most Acts of Parliament allow Ministers to make “delegated legislation” dealing (often) with more detailed and technical aspects of the overall legislative scheme. However, what is striking about the Withdrawal Bill is the potency and scope of the powers given to Ministers. Some of the powers granted by the Bill can be used to “make any provision that could be made by an Act of Parliament”. This is a “Henry VIII power”, which will allow Ministers not only to amend or repeal retained EU law, but also to amend or repeal other Acts of Parliament. There are some restrictions. They can only use the power if they think it is appropriate in order to make retained EU law “operate effectively” or to address some other “deficiency” in such law. And there are some things (e.g. creating more-serious criminal offences) that cannot be done under these powers. But the powers are framed in extraordinarily broad terms, and the limitations upon them are few. The House of Lords Constitution Committee, in a recent report, feared that the Bill, when published, would effect a “massive transfer” of power from Parliament to the Government. It does.

This would be less concerning if the Bill gave Parliament strong powers of oversight and control, enabling it to scrutinise and (where appropriate) reject regulations made by Ministers under their immensely wide powers. The Constitution Committee argued that extraordinary powers called for extraordinary arrangements for parliamentary oversight of their exercise. But the Government clearly disagrees, instead preferring the bog-standard, and largely dysfunctional, scrutiny system that applies to other, lesser powers. Most regulations made by Ministers under the Withdrawal Bill will in effect go through on the nod: they will take effect unless Parliament objects to them, which it rarely does. Some regulations will be subject to a different procedure, meaning that they take effect only if Parliament positively approves. But very few regulations will be dealt within in this way. A sobering fact is that the last time the House of Commons rejected a statutory instrument (a type of delegated legislation) was in 1979. Add in the further fact that thousands of regulations will likely need to be made before Brexit, and the prospect of meaningful parliamentary scrutiny recedes even further.

The Bill also raises constitutional concerns of different type. At the moment, devolved legislatures are forbidden from doing things that breach EU law, even if the thing they wish to do concerns a subject-matter that is devolved. When the UK leaves the EU, by default that restriction will go — in effect causing powers to flow from Brussels to the devolved capitals (as well as, in relation to non-devolved and English matters, London). But the Bill erects a diversion, providing that repatriated powers, even when they relate to devolved subjects, will instead go to London. The UK Government will then decide which of them to hand to the devolved institutions, the implication being that some will not be handed over. The First Ministers of Scotland and Wales have said that this is a “power grab”, and that the Scottish Parliament and the Welsh Assembly will therefore likely withhold their consent to the Bill unless it is amended. That does not amount to a legal block on enacting the Bill: their consent is required by convention, not law. But, at the very least, this will undoubtedly complicate the politics of getting the Bill through a House of Commons in which the Government’s position is already highly fragile.

The Conservative Party says that by introducing the Withdrawal Bill into Parliament, it is “giving Britain the certainty it needs as we leave the EU”. In reality, however, the Bill, far from resolving uncertainties, serves to highlight and emphasise the vast scale of the uncertainty that lies ahead. The powers granted by the Bill are as extraordinarily vague as they are broad; the division of territorial competences has been drawn in a way that risks further destabilising the union between the four nations of the UK; the number and volume of decisions that will need to be taken as EU law is converted into UK law is vast; and those who will wield these powers do not even know what sort of withdrawal to prepare for, given that there might or might not be an agreement with the EU, and given that we will not for some time know the content of any such agreement.

In political terms, the Withdrawal Bill is being presented as the epitome of the taking back of control and the restoration of “sovereignty” that has been so fetishized by some. But it actually demonstrates something very different. It serves as a stark reminder of the way in which the banal rhetoric that has characterised — and that continues to characterise — much of the political debate in this area is now beginning to meet brutal legal and constitutional reality. Some will doubtless find clause 1 of the Bill, which boldly proclaims that the European Communities Act will be repealed on “exit day”, intoxicating. They should make the most of it. Because the rest of the Bill palpably demonstrates that those drunk on the notion of taking back control need to face up to the fact that they — indeed, we — are in for one hell of a hangover.

This post is written in a purely personal capacity. A longer and more technical analysis of the European Union (Withdrawal) Bill can be found here.

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